New Reddy Timbers, Kurnool, Hyderabad vs Assessee

New Reddy Timbers The Income Tax Officer Kurnool - 518 004. vs. Ward-1 PAN AAEFN5191P Kurnool. (Appellant) (Respondent)

For Assessee : Mr. K.A. Sai Prasad For Revenue : Mr. Rajat Mitra

Date of Hearing : 30.04.2015 Date of Pronouncement : 01.05.2015

ORDER

PER P.M. JAGTAP, A.M.

This appeal is filed by the assessee against the Order of the Ld. CIT(A)-IV, Hyderabad dated 07.11.2014 whereby he dismissed the appeal of the assessee in limini holding the same to be barred by limitation.

2. The assessee in the present case is a partnership firm which is engaged in the business of purchase and sale of timber. The return of income for the year under consideration was filed by it on 30.09.2010 declaring total income of Rs.5,47,325. In the assessment completed under section 143(3) vide order dated 28.03.2012, the total income of the assessee was determined by the A.O. at Rs.32,38,698 after making addition of Rs.26,91,373 on account of gross profit estimated on suppressed sales. Against the order of the A.O. passed under section 143(3), an appeal was filed by the assessee before the Ld. CIT(A) belatedly with a delay of 198 2 ITA.No.133/Hyd/2015 New Reddy Timbers, Kurnool.

days. Application seeking for condonation of the said delay was also filed by the assessee wherein it was submitted that the assessment order received by the assessee was kept with him without taking the required steps to file an appeal before the Ld. CIT(A) as he could not contact the Auditor due to some pre-occupation and other pressing problems. It was submitted that when the Auditor asked the assessee at the time of penalty proceedings regarding the assessment order, the assessee realized his mistake and filed the appeal which resulted in delay of 198 days. It was contended that there was thus a sufficient cause for the said delay and request was made to the Ld. CIT(A) to condone the same. The Ld. CIT(A) did not find merit in the stand of the assessee that the delay was for a sufficient cause and relying on the decision of the Tribunal in the case of Jetha Drums and Containers P. Ltd., 17 SOT 11 (URO) (Mum.) he dismissed the appeal of the assessee in limini treating the same as barred by limitation. Aggrieved by the order of the Ld. CIT(A), the assessee has preferred this appeal before the Tribunal.

3. We have heard the arguments of both the sides and also perused the relevant material on record. It is observed that the application filed by the assessee for condonation of delay of 198 days in filing the appeal was rejected by the Ld. CIT(A) mainly relying on the decision of the Tribunal in the case of Jetha Drums and Containers P. Ltd., (supra). A perusal of the relevant portion of the order of the Tribunal passed in the said case however shows that the facts involved in the said case were entirely different from the facts involved in the present case inasmuch as there was an inordinate delay of more than 12 years on the part of the assessee in filing his 3 ITA.No.133/Hyd/2015 New Reddy Timbers, Kurnool.

appeal and the only reason given by the assessee for such inordinate delay was receipt of prosecution notice which compelled him to file the appeal before the Tribunal after long period of about 13 years which was not accepted by the Tribunal as sufficient cause.

4. In the present case, the delay on the part of the assessee in filing his appeal before the Ld. CIT(A) was only 198 days and the same was also duly explained by the assessee by pointing out that the required steps to file an appeal on receipt of the assessment order could not be taken intime due to some other pre-occupation and pressing problems and it was only during the course of penalty proceedings that the assessee realized after having asked by the Auditor regarding the assessment order that the appeal against it had remained to be filed before the Ld. CIT(A).

5. In the case of Shakti Clearing Agency P. ltd., vs. ITO 127 Txman 49 (Rajkot) (MAG), cited by the Ld. Counsel for the assessee Rajkot Bench of this Tribunal has condoned the delay of 345 days on the part of the assessee in filing the appeal before the first appellate authority as the same was attributable to negligence or inaction on the part of the tax consultant and there was no malafide imputable to the assessee. It was held by the Tribunal in this context that the expression "sufficient cause" should receive liberal construction so as to advance the substantial justice when no negligence or inaction or want of bonafide is imputable to the party. Keeping in view the decision of Shakti Clearing Agency P. Ltd., (supra) and having regard to the facts of the case, we condone the delay of 198 days on the part of the assessee in filing its appeal before the Ld. CIT(A) and remit the matter back 4 ITA.No.133/Hyd/2015 New Reddy Timbers, Kurnool.

to the Ld. CIT(A) with a direction to dispose of the appeal of the assessee on merit.

6. In the result, appeal of the assessee is treated as allowed for statistical purposes.

Order pronounced in the open Court on 01.05.2015.

Sd/- Sd/- (G.C. GUPTA) (P.M. JAGTAP) VICE PRESIDENT ACCOUNTANT MEMBER

Hyderabad, Dated 01st May, 2015

VBP/-

Copy to

1. New Reddy Timbers, 40-305, Bhagya Nagar, Kurnool-

518004 C/o. Ch. Parthasarathy & Co., 1-1-298/2/B/3, 1st Floor, Sowbhagya Avenue, St. No.1, Ashoknagar, Hyderabad - 500 020.

2. The Income Tax Officer, Ward-1, Kurnool

3. CIT(A)-IV, Hyderabad.

4. CIT-III, Hyderabad

5. D.R. ITAT "B" Bench, Hyderabad.

6. Guard File.